Puerto Rico Telephone Company Inc. v. Telecommunications Regulatory Board of Puerto Rico et al

Filing 37

OPINION AND ORDER granting 16 Motion to Remand to State Court. Signed by Judge Jay A Garcia-Gregory on 7/24/2013. (RJC) Modified on 7/24/2013 to add word opinion (ab).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PUERTO RICO TELEPHONE
COMPANY, et al,
Plaintiffs,
CIVIL NO. 12-1799 (JAG)
v.
WorldNet, et al,
Defendants.

OPINION & ORDER
Garcia-Gregory, D.J.
Pending before the Court is Puerto Rico Telephone Company’s
(“PRTC”) Motion to Remand to the Puerto Rico Court of Appeals in
Civil No. 12-1799 (Docket No. 16). The case involves PRTC’s
petition for judicial review of a determination made by the
Telecommunications Regulatory Board of Puerto Rico (“the Board”)
concerning

a

Telecommunications,

dispute

between

PRTC

Inc.

(“WorldNet”).

For

and
the

WorldNet

reasons

that

follow, the Court GRANTS PRTC’s Motion to Remand.
BACKGROUND
The

Federal

Telecommunications

Act

(“TCA”)

facilitates

entry into local telecommunications markets by competitive local
exchange carriers (“CLECs”) through the resale or leasing of

CIVIL NO. 12-1799 (JAG)
certain

facilities

2

of

incumbent

local

exchange

carriers

(“ILECs”). See 47 U.S.C. § 251. PRTC is an ILEC and WorldNet is
a

CLEC.

In

November

2010,

they

signed

an

Interconnection

Agreement (“ICA”) to offer telecommunications in accordance with
the TCA. (Docket No. 3-1).
This case concerns PRTC’s appeal of the Board’s grant of
WorldNet’s

petition

for

immediate

relief

against

PRTC

for

failing to comply with the ICA. (Docket No. 3-1). PRTC appealed
the Board’s decision to the Puerto Rico Court of Appeals and the
Board filed a Notice of Removal before this Court. (Docket No.
1).
DISCUSSION
Only a defendant can remove an action initially brought in
state court to federal court. 28 U.S.C. § 1441; Shamrock Oil &
Gas Corp. v. Sheets, 313 U.S. 100, 104-105 (1941). Thus, the
Board was entitled to remove this case only if it was a proper
defendant. To make this inquiry, the Court must look beyond the
position

assigned

to

the

Board

in

the

initial

pleading

and

assess if the Board is truly a defendant:1

1

The Court notes that the Board was named a “parte recurrida” in
the caption for the Petition for Administrative Reversal filed
by PRTC in the Puerto Rico Court of Appeals. The Court does not
believe this translates into the Board being named as a
defendant but assuming arguendo it does, the Board still does
not qualify as a defendant for removal purposes because of the

CIVIL NO. 12-1799 (JAG)

3

The positions assigned to parties in a suit by the
pleader are immaterial in determining the removability
of a cause. It is the duty of the national court to
ascertain the real matter in dispute, to arrange the
parties on opposite sides of it according to the facts
and their respective interests.
In re Chicago, M., St. P. & P.R. Co., 50 F.2d 430, 434 (D. Minn.
1931); see also Chicago, R.I & P.R. Co. v. Stude, 346 U.S. 574,
580

(1954)

(holding

that

railroad

was

the

plaintiff

and

therefore not entitled to remove despite being docketed as the
defendant); Mason City & Ft. D.R. Co. v. Boynton, 204 U.S. 570
(1907) (holding that landlord was a defendant and thus entitled
to

remove

despite

a

state

statute

deeming

the

landlord

a

plaintiff).
For removal purposes, the defendant is the party against
whom a claim is asserted. See OPNAD Fund, Inc., 863 F.Supp. 328,
333 (S.D. Miss. 1994); In re Estate of Duane, 765 F.Supp 1200,
1201 (S.D.N.Y. 1991). In this case, PRTC has not asserted any
claim against the Board. The Board is simply the administrative
agency

whose

granted

the

reversed,

determination

is

relief

it

seeks

WorldNet

is

the

being
and

party

the

contested.2
Board’s

that

would

If

PRTC

decisions
be

is
are

adversely

affected. Not so for the Board. The fact that the Board may have

subsequent analysis. The Court makes the same observation
regarding the caption in this case.
2
This lies in stark contrast to other cases in which PRTC has
asserted claims directly against the Board; e.g., that a Board
Order violated PRTC’s due process rights. See Civil Nos. 131186, 11-1152 and 11-2263.

CIVIL NO. 12-1799 (JAG)
some

interest

in

4

the

outcome

of

this

litigation

does

not

automatically make them a defendant entitled to remove. See,
e.g., Gross v. Deberardinis, 722 F.Supp.2d 532 (D. Del. 2010);
American

Home

Assur.

Co.

v.

RJR

Nabisco

Holdings

Corp.,

70

F.Supp.2d 296, 298-299 (S.D.N.Y. 1999). In light of the above,
the Court finds that the Board is not a true defendant and
cannot remove under 28 U.S.C. § 1441.
The Board argues, however, that Worldnet later gave its
consent

to

proceed

in

this

Court

and

therefore,

cured

the

defective notice of removal. The Court is not convinced. The
Board’s argument alludes to those situations in which a notice
of removal fails the unanimity requirement. In those cases, the
defect can be cured if the remaining defendants later express
their desire to be in federal court. See, e.g. Esposito v. Home
Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009). But, that
presumes

that

the

initial

notice

of

removal

was

filed

by

a

“true” defendant. As held above, the Board was never a proper
defendant since no claim was asserted against them by PRTC.
Therefore, since the Board never had authority to remove, the
notice of removal it filed was never valid in the first place
and

so

it

is

immaterial

whether

WorldNet

consented

to

it.

WorldNet was the defendant that had to file a notice of removal;
it did not do this and thus removal is improper.

CIVIL NO. 12-1799 (JAG)
Any

doubts

about

5
the

propriety

of

a

removal

should

be

resolved in favor of remand to the state court jurisdiction. See
Mass. Sch. Of Law at Andover, Inc. v. American Bar Ass’n, 142
F.3d 26, 33 (1st Cir. 1998); Colon-Rodriguez v. Astra/Zeneca
Pharmaceuticals, LP, 831 F.Supp.2d 545, 549 (D.P.R. 2011). Given
this standard, even if it is not crystal clear that removal was
improper, there are sufficient doubts about the propriety of the
Board’s removals to warrant remanding these cases to the state
court.
CONCLUSION
For

the

reasons

stated

above,

the

Court

GRANTS

Motion to Remand. Judgment shall follow accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 23rd day of July, 2013.
S/ Jay A. Garcia-Gregory
United States District Judge

PRTC’s